United States: A Full Slate For The FTC?

It appears increasingly likely that for probably the first time since the Federal Trade Commission (FTC) was established, we will have five new Commissioners in the same calendar year. At the moment, only two of the FTC's five Commissioner seats are currently filled. Commissioner McSweeny's term has already expired, and she has announced that she will leave the Commission by the end of April. Acting Chairman Ohlhausen has been nominated for a position on the federal bench and is expected to leave when her replacement is confirmed by the Senate.

Below is a quick primer on the nomination process and the individuals nominated to fill the current vacancies.

The Process

FTC Commissioners are nominated by the President and confirmed by the Senate for a term of seven years, subject to the rule that no more than three Commissioners may be from the same political party. The President also designates who is to serve as Chairman. Note that the seven-year terms are set rather than running from when an individual is confirmed so that some of the nominees will fill remaining shorter terms.

To date, four individuals have been nominated and voted out of the Senate Commerce Committee. They now await confirmation by the full Senate. In addition, the Trump administration recently announced its intent to nominate the fifth Commissioner. Interestingly, the nominees for the Commissionerships seem to bring little in the way of past consumer protection experience.

The Nominees

Joseph Simons (R)

Joseph Simons is President Trump's nominee for Chairman of the FTC. He has been nominated to take the seat currently held by Commissioner McSweeny, whose term expires in 2024. Mr. Simons is a highly regarded antitrust lawyer and has worked in this for most of his professional career. Before that, Mr. Simons served at the FTC as the Director of the Bureau of Competition from June 2001 to August 2003. In this role, he was the head of the FTC's antitrust enforcement. During his tenure the Commission was active in both merger and non-merger enforcements. Prior to heading the Bureau of Competition, he was a partner at law firm Clifford Chance, and earlier in his career he was the Bureau of Competition's Associate Director for Mergers and Assistant Director of Evaluation. Mr. Simons is generally regarded as having a strong interest in bringing economic analysis to bear on antitrust law and his published articles, which include "The 2010 Merger Guidelines, Critical Loss, and Linear Demand" as well as "In Defense of Market Definition," reflect this. He is not believed to have much in the way of consumer protection experience.

Noah Phillips (R)

Noah Phillips will come to the FTC from the Senate, where he is Chief Counsel for Texas Republican John Cornyn at the Senate Judiciary Committee. He has been nominated to fill a seat for a term that expires in 2023. Mr. Phillips has been at the Senate since 2011, and his work in that role has touched on issues related to the FTC, including antitrust matters and oversight of the agency. Earlier in his career, Mr. Phillips clerked on the 5th Circuit before practicing in the private sector at Cravath, Swaine and Moore and later at Steptoe and Johnson. The website for the Federalist Society, an organization that advocates conservative principles in the legal profession, lists Mr. Phillips as a "contributor."

Christine Wilson (R)

Christine Wilson is currently a Senior Vice President at Delta Air Lines. She has been nominated for a term that expires in 2025. Her role at Delta involves leading the legal and regulatory teams, but Ms. Wilson has self-described her specialty as antitrust law. She has been recognized by publications such as Chambers USA and Euromoney as a leading antitrust attorney, reflecting her experience in the field.

Before becoming an executive at Delta, Ms. Wilson was a partner at the Kirkland and Ellis and prior to that at O'Melveny and Myers, where she counseled clients on antitrust and consumer protection issues. Ms. Wilson also served as the Chief of Staff to FTC Chairman Tim Muris from 2001 to 2002 where she would have dealt with a wide range of consumer protection issues. Ms. Wilson also co-founded The Grapevine, an organization that seeks to connect women practicing antitrust and consumer protection law in Washington, D.C.

Rohit Chopra (D)

Rohit Chopra is one of two Democratic nominees and is nominated for a term that expires in 2019. In contrast to the other nominees, Mr. Chopra is not a lawyer. His relevant consumer protection experience has focused primarily on student loan issues. From 2010 to 2015, he worked at the Consumer Financial Protection Bureau, where he served as Assistant Director and Student Loan Ombudsman. After the CFPB Mr. Chopra was Special Advisor to the Secretary of the U.S. Department of Education. In that role, he again focused on student loan servicers and providers, similar to his work at the CFPB. Currently, Mr. Chopra is a senior fellow at the non-profit Consumer Federation of America, and previously he held the same title at the Center for American Progress. In an article last year on fine print in consumer agreements, Mr. Chopra was quoted as saying "fine print is often a way to give companies plausible deniability that they aren't breaking the law." Mr. Chopra received his M.B.A from The Wharton School at the University of Pennsylvania and then worked for two years at McKinsey, a management consulting company.

Rebecca Slaughter (D)

In late March, the administration also announced its intent to nominate Rebecca Slaughter for the last remaining FTC seat. She would take over a term that expires in 2022. Currently, Ms. Slaughter serves as Chief Counsel to Senate Minority Leader Chuck Schumer. Prior to that, she was counsel to Senator Schumer on the Senate Judiciary Committee and had a brief stint at the law firm Sidley& Austin after graduating from Yale law school.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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